Speech First v. Fenves

August 16, 2019 • Legal Briefs
By Matt Miller, Timothy Sandefur, Robert Henneke, Ilya Shapiro, & Trevor Burrus

Speech First is an organization of students and allies founded in 2018 to restore the protections of the First Amendment on college campuses. Its members hold a variety of conservative and libertarian views on topics such as gun rights, racial issues, immigration, and President Trump, many of which are currently unpopular on college campuses. Students attending the University of Texas at Austin who are members of Speech First would like to freely share and discuss their views on campus but are afraid that if they do so they will be disciplined by the university for violating its policies limiting student speech. These policies include speech codes and a “Campus Climate Response Team,” or CCRT, that addresses “bias incidents” on campus.

In order to protect the First Amendment speech rights of its members, Speech First sued the university, arguing that the university’s speech policies are both too broad and too vague to be constitutional. Speech First asked the trial court to grant a preliminary injunction preventing the university from enforcing its policies in violation of students’ First Amendment rights. The trial court not only refused to grant the injunction, it also spontaneously dismissed Speech First’s entire case, claiming that Speech First does not have standing to challenge any of the university’s policies. Standing is the ability of a person or entity to bring a lawsuit, and the trial court held that Speech First must show that the students’ self‐​censorship in the face of the university’s policies must be “objectively reasonable” in order to establish standing. The court held that Speech First did not meet this standard because the university has made declarations claiming that it does not punish students for protected speech.

Speech First has appealed the trial court’s denial of a preliminary injunction and its dismissal of Speech First’s case to the Fifth Circuit. Together with the Goldwater Institute and the Texas Public Policy Foundation, Cato has filed a brief in support of Speech First’s appeal. We argue that Speech First has standing to sue because it is objectively reasonable for students with conservative or libertarian opinions to self‐​censor when faced with speech policies like the ones that the university has adopted. Recent incidents at colleges across the country establish that expressing unpopular ideas on campus frequently leads to formal discipline, forced apologies, and the defunding of conservative and libertarian student groups. The consequences for students can be serious, and official university disciplinary actions such as those permitted by the university’s rules can cause long‐​term damage to students’ ability to seek future educational or employment opportunities.

Policies like those adopted by the university, combined with a nationwide collegiate trend towards punishing students with unpopular views, create a chilling effect on speech that makes the members of Speech First justifiably afraid to freely express their views. As a public university, the University of Texas at Austin has a constitutional duty to respect and abide by the protections of the First Amendment. Speech First has shown that, in adopting its current speech policies, the university has failed to meet this duty. We urge the Fifth Circuit to recognize that the threat of unconstitutional enforcement of the university’s speech policies makes it objectively reasonable for conservative and libertarian students to self‐​censor, establishing standing for Speech First to protect the First Amendment rights of its members in court.

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